Domestic Relations

Question 1

Desertion - Standard of Proof

Answer 1

Preponderance of Evidence

Question 2

Desertion - SeparationPeriod

Answer 2

1 year of separation before divorce will be granted.

Question 3

Constructive Desertion

Answer 3

Where a spouse engages in exclusively verbal abuse, and that verbal abuse causes the other to become ill and to reasonably fear for her health and safety, a court will most likely find grounds for a constructive desertion.

a. This claim requires conduct so egregious as to warrant leaving the marital home.

b. Does not require physical abuse or assault

Question 4

Cruelty - Standard of Proof

Answer 4

Preponderance of Evidence

Question 5

Cruelty-Separation period

Answer 5

1 year of separation before divorce will be granted.

Question 6

Cruelty Requirements

Answer 6

Requires acts that tend to cause bodily harm and render the spouses living together unsafe.

Question 7

Adultery - Standard of Proof

Answer 7

Clear & Convincing

Question 8

Adultery - Separation Period

Answer 8

No separation period upon proof of adultery. Court will grant immediate divorce.

Question 9

When is adultery not a ground for divorce?

Answer 9

Recrimination - Other spouse also engaged in adultery

Condonation: When the adultery is condoned by resuming marital relations.

Question 10

No-Fault Divorce
(No Kids)

Answer 10

A no fault divorce can be granted in situations where the parties:

(1) Have a separation agreement

(2) Lived separate and apart for 6 months without cohabitation or interruption.

Question 11

No Fault Divorce
(They have kids)

Answer 11

A no fault divorce will be granted in this situation if:

(a) Separation agreement

(2) Lived separate and apart for 1 year without cohabitation or interruption.

Question 12

Spousal Support

Answer 12

When determining if to award spousal support court will consider:

(a) circumstances and factors which contributed to the divorce, specifically including adultery and other grounds for divorce.
(b)existing assets of each spouse
(c) employment of each spouse and relative earning potential
(d) the standard of living that the marriage afforded each spouse,
(e) the duration of the marriage
(f) any existing health or extreme financial challenges of each spouse
(g) and each spouse’s relative fault for the breakup of the marriage.

Question 13

Bars to Spousal Support

Answer 13

Adultery bars an award of spousal support to an offending spouse, unless the denial of that award will amount to a manifest injustice to that spouse.

Manifest injustice is a discretionary standard applied by the judge that is generally not disturbed on appeal.

Question 14

Marital Property

Answer 14

In determining a share of marital property, a court must determine the value of all property, real and personal, tangible and intangible, acquired during the marriage.

The value of the property shall be determined on the date of the equitable distribution hearing.

The division of the marital property shall consider such factors as:
(1) the contributions of each party in the acquisition of the property;

(2) the duration of the marriage;

(3) the ages and mental and physical condition of the parties;

(4) how and when specific items were acquired;

(5) the debts and liabilities of each spouse;

(6) the tax consequences to each party;

(7) the liquid or non-liquid character of the property;

(8) whether either spouse used marital property to commit a violation of the bounds of the marriage, such as adultery; and

(9) such other factors as the court considers necessary and appropriate to reach a fair award.

Question 15

Grounds for Annulment

Answer 15

fraud
duress
bigamy
defective licensing or solemnization
violation of kinship intermarriage prohibitions, or
lack of capacity to consent to marriage because of mental incapacity or infirmity.

Question 16

Examples of when an aggrieved party may bring suit for annulment

Answer 16

Other party suffers from incurable impotency existing at the time of the marriage contract

One party, without the knowledge of the other, was convicted of a felony prior to the marriage.

At the time of the marriage, the wife, without the knowledge of the husband was carrying another mans child

The husband without the knowledge of the wife, fathered a child born to another women within 10 months after the date of solemnization of he marriage

Prior to the marriage, one party had been a prostitute without the knowledge of the other.

Question 17

When will annulment not be granted?

Answer 17

Annulment cannot be granted on any grounds if the parties cohabitated together after learning of the facts constituting grounds for annulment.

Question 18

What date is marital property determined as of?

Answer 18

determined as of the date of the last separation of the parties. Property acquired after the date of last separation should be treated as separate property.

Question 19

Bigamous Marriage

Answer 19

Bigamous marriages are void ab initio. Virginia provides that all marriages which are prohibited by law on account of either parties having a former husband or wife, who is alive, shall be void without any decree of divorce or any other legal process.